Catholic University Law Review 43:1 (Fall 1993).
Ever since Jeremy Bentham scorned the idea of natural or moral rights as no ordinary nonsense, but “nonsense upon stilts,” a certain stream of thought about rights has held them to be merely conventional and historically contingent. According to the conventionalist or historicist view, moral rights cannot come as a divine gift because there is no divine giver; nor can they derive from human nature because there is no determinate human nature. Moral rights, according to conventionalists and historicists, exist only in the sense that certain people, or peoples, happen to believe–as a contingent matter of fact, that is, subjectively–that rights exist and are willing to honor them. Where people, or peoples, do not happen to believe in their existence, rights simply do not exist.
Now historicists and conventionalists do not doubt the existence of legal rights. For legal or “positive” rights can easily be accommodated and accounted for in historicist and conventionalist terms. What they deny, and what theorists of natural law and natural rights affirm, is that legal rights can embody or express moral rights that are not merely contingent and conventional. In other words, the issue dividing historicists and conventionalists, on the one side, and partisans of natural law and natural rights, on the other, is whether positive law can be designed to embody, or can validly be criticized for failing to embody, objective or true principles of justice. Such principles are principles that people, or peoples, have sound reasons to hold and honor whether or not they happen to hold and honor them in fact.
Any serious student of civil rights must inquire into the moral ground and epistemic status of civil rights. Is the mode of existence of civil rights simply historically contingent and conventional? That is, do civil rights come into being merely at some specific time and place, and then possibly disappear as “history” or experience unfolds?
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